Neeta Sawant WP NO. 10422 OF 2023

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 10422 OF 2023

Shri. Yashavant Bapu Pawar …..PETITIONER

: VERSUS :

Shri. Amit Chandrakant Khanavare & Ors. ….RESPONDENTS

WITH

WRIT PETITION NO. 827 OF 2015

Sainath Shikshan Prasarak Mandal & Anr. …..PETITIONERS

: VERSUS :

Shri Pawar Yeshwant Bapu & Anr. ….RESPONDENTS

Mr. Y.B. Lengare with Mr. Aditya K. Gaikwad, Mr. Sunny Sadafule, for

Petitioner in WP/10422/2023 & for Respondent in WP/827/2015.

Mr. Laxman S. Deshmukh for Petitioner in WP/827/2015 & for

Respondent in WP/10422/2023.

Ms. S.D. Chipade, AGP for State, Respondent in WP/10422/2023

Ms. V.R. Raje, AGP for State, Respondent in WP/827/2015

CORAM : SANDEEP V. MARNE, J.

Reserved On : 04 March, 2026.

Pronounced On: 18 March, 2026.

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Neeta Sawant WP NO. 10422 OF 2023

Judgment:

1) These two Petitions arise out of order of reinstatement with

full backwages passed by the School Tribunal. The Management has

challenged School Tribunal’s judgment and order dated 30 October 2014

directing reinstatement of the Teacher with full backwages with

continuity of service by �ling Writ Petition No.827 of 2015. Since no stay

has been granted to the order of the School Tribunal in the Petition �led

by the Management, the order was sought to be executed by the Teacher.

The Executing Court has however, directed payment of amount of

Rs.5,42,321/- to the Teacher towards implementation of order of the

Tribunal. The Teacher is aggrieved by the amount determined by the

Executing Court and claims that the total backwages receivable by him

are to the tune of Rs.57,19,824/- and has accordingly �led Writ Petition

No.10422 of 2023.

2) Brie�y stated, facts of the case are that Sainath Shikshan

Prasarak Mandal runs and operates Adarsha Madhyamik Vidyalaya at

Bhigwan, Indapur, District-Pune. At the relevant time the School was

completely unaided. Shri. Yashavant Pawar (Teacher) claims that he

possessed quali�cation for being appointed as a Teacher and applied in

pursuance of an advertisement issued by the Management. The Teacher

joined the school w.e.f. 13 December 2007 and claims tha t his

appointment was after following due process of selection and against

permanent sanctioned vacant post. It appears that approval was granted

to the appointment of the Teacher by the Education Of�cer on 21

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Neeta Sawant WP NO. 10422 OF 2023

February 2008. According to the Teacher, his services were orally

terminated w.e.f. 29 December 2013 and in his place, Smt. Rinku Gavit

was appointed by order dated 31 December 2013.

3) The Teacher �led Appeal No.5 of 2014 before the School

Tribunal, Pune, challenging his ‘otherwise termination’ effected on 29

December 2013. The Appeal preferred by the Teacher was resisted by the

Management by �ling reply. The School Tribunal has proceeded to allow

the Appeal preferred by the Teacher by judgment and order dated 30

October 2014. The Tribunal has set aside termination order dated 29

December 2013 and has directed reinstatement of the Teacher on the

original post with full backwages and continuity of service w.e.f. 29

December 2013. The Management is aggrieved by Tribunal’s order dated

30 October 2014 and has accordingly �led Writ Petition No.827 of 2015.

The Petition came to be admitted by this Court vide order dated 4 March

2015 but prayer for interim relief was rejected. It was however, directed

that continuance of Teacher in the school would be subject to �nal

decision in the Petition and that the Teacher shall not claim any equities.

4) Since this Court refused to stay School Tribunal’s order

directing reinstatement with full backwages, the Teacher �led M.A. No.7

of 2016 before the School Tribunal for implementation of order dated 30

October 2014. The said Application was allowed by the Tribunal and by

order dated 4 February 2017, the proceedings were transferred to the Civil

Judge, Senior Division, Baramati for execution of order dated 30 October

2014 passed in Appeal No.5 of 2014. Accordingly, the ex ecution

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Neeta Sawant WP NO. 10422 OF 2023

proceedings were registered as Special Darkhast No.5 of 2017 before Civil

Judge, Senior Division, Baramati. In execution proceedings, Teacher �led

Application at Exhibit-42 seeking reinstatement on original post. The said

Application was however rejected by the Executing Court by order dated

10 December 2021. The Teacher �led Writ Petition No.1134 of 2022 in

which order dated 4 April 2022 was passed setting aside Executing Court’s

order dated 10 December 2021. Application at Exhibit-42 was restored by

this Court. This Court also directed Education Of�cer to calculate the

entire backwages payable to the Teacher. Accordingly, the Education

Of�cer (Secondary) Zilla Parishad, Pune, computed the backwages in

respect of the Teacher at Rs.46,87,009/- and Dearness Allowance at

Rs.10,01,993/-. The Management challenged decision of the Education

Of�cer by �ling Writ Petition No.9219 of 2022 but withdrew the same on

21 December 2022 with liberty to lodge objection before the Execution

Court.

5) The Teacher �led Application at Exhibit-70 in the execution

proceedings seeking a declaration that termination order dated 29

December 2013 was illegal and seeking direction for reinstatement with

full backwages and continuity w.e.f. 29 December 2013. On the other

hand, the Management �led Application at Exhibit-80 offering to pay

backwages of only Rs.2,54,100/- to the Teacher and prayed for a direction

not to reinstate the Teacher in service. The Management claimed that

Teacher was called upon to report for duties vide �ve letters dispatched

through RPAD, but he refused to join the duties. The Executing Court

thereafter took up Teacher’s remanded Application at Exhibit-42 and

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Neeta Sawant WP NO. 10422 OF 2023

Application at Exhibit-70 as well as Management’s Application at Exhibit-

80 for decision. By order dated 21 April 2023, the Executing Court has

partly allowed Application at Exhibit-70 �led by the Teacher and has

rejected Applications at Exhibit-42 �led by the Teacher and at Exhibit-80

�led by the Management. The Executing Court has directed payment of

backwages of only Rs.5,42,321/- for the period from 29 December 2013 to

15 March 2015. It appears that amount of Rs.4,13,000/- was already

deposited by the Management in the Executing Court. The balance

amount was directed to be paid to the Teacher. The Teacher is aggrieved

by order dated 21 April 2023 passed by the Executing Court and has

accordingly �led Writ Petition No.10422 of 2023.

6) By administrative order dated 12 March 2024, Writ Petition

No.827 of 2015 is directed to be heard by Court having assignment of Writ

Petition No.10422 of 2023. Accordingly, both the Petitions are taken up

for analogous hearing.

7) I have heard Mr. Deshmukh, the learned counsel appearing

for the Management, who submits that the School Tribunal has erred in

allowing the Appeal preferred by the Teacher and directing his

reinstatement with full backwages and continuity of service. He submits

that the Teacher was not appointed against any sanctioned vacant post

nor any selection process was conducted before his appointment. He

submits that there were only four posts at the relevant point of time and

all four posts were occupied. That appointment of Teacher was made

against leave vacancy and his services were utilised from time to time as

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Neeta Sawant WP NO. 10422 OF 2023

per requirement and particularly because the Teacher was in the need of

experience. He submits that the Tribunal has grossly erred in drawing

adverse inference to the effect that the appointment of the Teacher was

against the post occupied by Smt. S.M. Potphode, only on account of

refusal of approval in respect of Teacher- Smt. S.M. Potphode. He submits

that Smt. Potphode was subsequently granted approval by the Education

Of�cer in the year 2009 meaning thereby she continued to occupy the

post. That therefore, no post was available for appointment of the

Teacher. He submits that the Management has not submitt ed any

proposal for grant of approval to the appointment of the Teacher. That

alleged approval dated 21 February 2008 by the Education Of�cer is in

absence of any proposal by the Management. He further submits that the

Management was required to recruit Teacher belonging to Scheduled

Tribe (ST) category. That accordingly the post was ultimately �lled up by

recruiting Smt. Rinku Gavit belonging to ST Category vide order dated 31

December 2013. That the Teacher was thus occupying position, which was

required to be �lled up by ST Category candidate as per roster. He

accordingly submits that there was no regular appointment in respect of

the Teacher and he therefore does not have any right to continue as the

Teacher in the school of the Management. That the School Tribunal has

erroneously assumed that the Teacher was appointed as per rules and

proceeded by drawing mere surmises and conjectures in absence of any

concrete evidence. He submits that the School Tribunal’s order dated 30

October 2014 therefore deserves to be set aside.

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Neeta Sawant WP NO. 10422 OF 2023

8) Mr. Deshmukh further submits that once School Tribunal’s

order dated 30 October 2014 is set aside, there is no question of payment

of any backwages to the Teacher. Without prejudice, he however submits

that in the event of this Court upholding the order of the School Tribunal,

the same has been complied with by the Management. He submits that

the Executing Court has rightly appreciated the position and has directed

payment of Rs.5,42,321 /- plus annual increment vide order dated 21 April

2023. That the Education Of�cer has erroneously computed service from

29 December 2013 till his decision dated 20 June 2022 ignoring the

position that the Teacher was already reinstated in service in pursuance

of School Tribunal’s order dated 16 March 2015. That the Executing Court

has conducted a factual enquiry about reinstatement of the Teacher w.e.f.

16 March 2015 and has rightly restricted payment of backwages for the

period from 29 December 2013 to 15 March 2015. He would submit that

the Management has already deposited total amount of Rs.5,42,321/-

which has been withdrawn by the Teacher. He submits that therefore Writ

Petition No.10422 of 2023 deserves to be dismissed.

9) Mr. Lengare, the learned counsel appearing for the Teacher

opposes Writ Petition No.827 of 2015 and submits that no interference is

warranted in the School Tribunal’s judgment and order dated 30 October

2014. He submits that the Tribunal has rightly appreciated the position

that the Teacher was appointed as per rules and procedures against

sanctioned vacant post. He submits that if appointment of the Teacher

was irregular, the Education Of�cer would not have granted approval to

his appointment. That the Tribunal has rightly arrived at a conclusion

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Neeta Sawant WP NO. 10422 OF 2023

that the Teacher was appointed on refusal of proposal of Smt. Potphode.

That the Management played fraud and secured subsequent approval to

appointment of Smt. Potphode on 16 January 2009 even though Teacher’s

appointment was already approved on 21 February 2008. He invites my

attention to the averments in the Appeal Memo where the Teacher has

referred to issuance of advertisement by the Management. He further

submits that if the Petitioner was irregular appointee or adhoc appointee,

he would not have continued in the School without any break from 13

December 2007 to 28 December 2013. He submits that services of the

Teacher were illegally terminated for the purpose of accommodation of

Smt. Rinku Gavit. He would therefore submit that the Tribunal has rightly

held the termination to be bad in law. He would pray for dismissal of Writ

Petition No.827 of 2015.

10) So far as Writ Petition No.10422 of 2023 is concerned, Mr.

Lengare submits that the Executing Court has grossly erred in restricting

the backwages to Rs.5,42,321/- That the computations made by the

Executing Court run contrary to the computations of the Education

Of�cer. He relies on order dated 4 April 2022 passed in Civil Writ Petition

No.1134 of 2022 in support of his contention that the calculations were

made by the Education Of�cer in pursuance of order passed by this Court.

That the Management unsuccessfully challenged Education Of�cer’s

order in Writ Petition No.9219 of 2022, which was ultimately withdrawn

by the Management on 21 December 2022. He submits that the Executing

Court has erroneously held that the Teacher was reinstated in service on

16 March 2015. That the Teacher has not received any wages after alleged

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Neeta Sawant WP NO. 10422 OF 2023

reinstatement. That he was not allowed to work and farcical show of

reinstatement was created for avoiding payment of backwages. That the

Education Of�cer has considered this aspect and has refused to believe

the theory of reinstatement. That even if reinstatement from 16 March

2015 is accepted, non-payment of wages is proved. That therefore the

Education Of�cer has rightly computed backwages of Rs.46,87,009/- for

the period from 29 December 2013 to 31 May 2022. That the Executing

Court has erroneously ignored this aspect while passing impugned order

dated 21 April 2023. He would therefore pray for payment of full

backwages from 29 December 2013, which was to the tune of

Rs.57,19,824/- at the time of �ling of the Writ Petition No.10422 of 2023.

Mr. Lengare would accordingly pray for allowing Writ Petition No.10422

of 2023.

11) Rival contentions raised on behalf of the parties now fall for

my consideration.

12) The Tribunal’s judgment and order dated 30 October 2014

setting aside the termination and directing reinstatement with full

backwages is under challenge. As against this, Writ Petition No.10422 of

2023 involves challenge to the order passed by the Executing Court

passed while executing Tribunal’s order dated 30 October 2 014.

Therefore, the decision of Writ Petition No.827 of 2015 would have

substantial bearing on the outcome of Writ Petition No.10422 of 2023. If

the order of the School Tribunal is interfered with, the same would affect

the orders passed in execution proceedings. Accordingly, I proceed to

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Neeta Sawant WP NO. 10422 OF 2023

examine the impugned judgment and order dated 30 October 2014 passed

by the School Tribunal in Appeal No.5 of 2014.

13) The Teacher was appointed in the school of the Management

vide appointment order dated 12 December 2007. The terms of

appointment are bit confusing. The order states that the appointment was

against leave vacancy and for a period between 13 December 2007 to 13

December 2009 and the appointment was described as temporary. The

appointment order also states that the same was on probation for a period

of 2 years. Therefore, considering the language of the appointment order

it is dif�cult to record a conclusive �nding as to whether it was a regular

appointment on probation or mere temporary engagement against the

leave vacancy.

14) The Tribunal has conducted factual enquiry into availability

of sanctioned posts for appointment of the Teacher. It has recorded

following �ndings while concluding that there was one sanctioned post

vacant as on 1 November 2007:

17) However, I have carefully scrutinized all the documentary evidence

of both sides. Then it is found that, it is not disputed to both parties

that, there was four posts of Asst. Teachers were sanctioned in the year

2007 But as per the submission of the Respondent that, already those

four posts of Asst. Teachers were �lled up at the time of appointment of

the appellant i.e. on 12/12/2007 the names of the teachers are

1. Smt.Jagtap S.H..

II. Smt.Nalawade H.B.,

III. Shri.Chandgude N.N.,

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Neeta Sawant WP NO. 10422 OF 2023

IV. Sau.Potphode S.M.

18) Accordingly, as per the submission of the respondents there was no

vacant post at the time of appointment of the Appellant.

But when I carefully scrutinized all the documents like Appointment

orders, Approvals, Statement-A. Out of these the material and

substantial evidence is of Approval Order of the Resp ondent

No.3/Education Of�cer dated 26/10/2007 (Exh.25/1), thereby the

Respondent No.3/Education Of�cer approved the appointment of 3 Asst.

Teachers like Smt.Jagtap, Smt. Nalawade and Shri.Chandgude on the

vacant post. Their appointment appears in the year 2005-06. But the

important facts which has been noticed by this Court that, the

Respondent No.3/Education Of�cer passed Remark at the bottom of this

Approval Order that, "Sau. Potphode S.M is Untrained", therefore her

appointment is disapproved rejected". By this vital documentary

evidence it has been proved that, the appointment of Sau.Potphode was

not approved by the Respondent No.3/Education Of�cer on the said

fourth vacant, sanctioned post as an Asst. Teacher upto 01/11/2007. It

means there was one sanctioned post was vacant on 01/11/2007 as the

quali�ed teacher or trained teacher was not appointed as per the rule.

29) But there is no such documentary evidence  to prove such fact In fact

the continuation of service of the appellant for 6 years is strong

circumstantial evidence thereby it is proved that this appellant was

appointed as per rule and as per procedure, thus probation period was

given. That contention of the appointment letter and indemnity bond

which was taken by appellant are suf�cient evidence to prove that he

was appointed by following due procedure of Law on clear, vacant and

permanent post and not appointed as temporary basis. As such decision

in the case of President, Late Shri Ramchandra Patil Shikshan Sanstha,

Kunikonur and others Vs. Hadarali Mahmadhanif Inamdar and another

cited supra is not applicable to the present set of facts.

With this statement/pleading. submissions of the

Respondent/Management are unbelievable here.

30) When all these substantial material facts are proved then further

question arose whether his service is protected? As per undisputed facts

here, this appellant rendered his service from 2009 up to 2013 without

any break or end. Then de�nitely he accrued right of deemed

permanency under Section 5(2) of the MEPS Act and naturally his service

is being protected U/s. 4(6)of the MEPS Act. Thus it required to follow all

procedure as contemplated in MEPS Act and Rules for terminating

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Neeta Sawant WP NO. 10422 OF 2023

service of this appellant. So if his service is terminated without following

such procedure and rules then such termination is illegal.

15) I �nd the above �ndings recorded by the School Tribunal to

be totally perverse. The Tribunal has drawn a surmise that one post of the

Assistant Teacher must have been vacant because the Education Of�cer

refused to grant approval to the appointment of Smt. S.M. Potphode. Non

grant of approval is a concept different that the concept of post becoming

vacant. Even if approval is not granted, the same does not mean that the

person occupying the posts gets automatically terminated or he/she

physically vacates the posts. In the present case, the record bears out

that Smt. Potphode continued in service even after non grant of approval

and subsequently the Education Of�cer granted approval to her appoint

on 16 January 2009. This is clear from the following �ndings recorded by

the School Tribunal itself in paragraph 21 of the order :-

The other documents vide Exh.25/2 i.e. Approval of the Appointment of

the Appellant dated 21/02/2008 for period of 2007-08 and the Approval

order to the appointment of the Sau. Potphode dated 16/01/2009 for the

period of 2008 to 2009 also not disclosed the name of this Mrs.Jagdale

J.T. as an Asst. Teacher working in the said school as per the

appointment order dated 16/06/2007.

16) The fact that the approval was granted to appoint of Smt. S.M.

Potphode on 16 January 2009 would indicate that she never vacated the

post after initial non-grant of approval on 26 October 2007. Therefore,

the inference or surmise drawn by the School Tribunal about existence of

vacant post as on 1 November 2007 for appointment of the Teacher is

clearly perverse.

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Neeta Sawant WP NO. 10422 OF 2023

17) It appears that the Tribunal has not conducted any inquiry

into the selection process followed before the appointment of the

Teacher. After the management took a defence that the appointment was

temporary without following due process of selection, the burden was on

the Teacher to prove that his appointment was done after following due

process of selection. Mr. Lengare has invited my attention to following

averments in the Appeal Memo:-

Appellant submits that appellant has passed B.A. Examination as a

special subject Hindi in the year 2005 from Pune University & B.Ed

Examination in the year 2007 from Pune University. Appellant further

submits that respondent/management have published advertisement for

the recruitment of assistant teacher on permanent unaided basis in Daily

Newspaper and as per the advertise, appellant has applied for the post of

assistant teacher. It is further submitted that respondents have taken

interview and selected the appellant in the said interview for the post of

assistant teacher on clear and permanent vacant post. 

18) However, not a single document was produced before the

Tribunal in support of the above averments. The Tribunal has also not

expected the Teacher to produce any document to prove conduct of

selection process prior to his appointment. On the contrary, the Tribunal

has proceeded to accept the bald averments of the Teacher that his

appointment was after following due process of selection.

19) In absence of any direct evidence of holding of any selection

process prior to appointment of the Teacher, the Tribunal has drawn a

surmise that the appointment was after following due process of selection

on the basis of so called ‘strong circumstantial evidence’. The relevant

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Neeta Sawant WP NO. 10422 OF 2023

�ndings of the School Tribunal in paragraph 29 of the judgment are as

under:

But there is no such documentary evidence to prove such fact In fact the

continuation of service of the appellant for 6 years is strong

circumstantial evidence thereby it is proved that this appellant was

appointed as per rule and as per procedure, thus probation period was

given. 

20) I again �nd an element of perversity in the �ndings recorded

by the School Tribunal on the aspect of appointment being made after

following due process of section. Whether selection was conducted or not

is a matter of fact which needs to be proved by producing advertisement,

call letter, etc. There is no question of applicability of concept of

circumstantial evidence for drawl of presumption about holding of

selection process. The Tribunal ought to have expected the Teacher to

produce copy of the advertisement or letter calling him upon to appear in

the interview. Mere continuation of service for 6 years cannot be a ground

for presuming that the appointment must have been after following due

process of selection.

21) Thus, the �nding recorded by the School Tribunal on the

aspect of availability of sanctioned vacant post and holding of selection

prior to appointment do not appeal to this Court. At the same time, the

Teacher strenuously relies on approval order dated 21 February 2008

issued by the Education Of�cer (Secondary) Pune Zilla Parishad. The

Management has sought to wriggle out of approval order by contending

that no proposal was ever sent by the Management for seeking approval

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Neeta Sawant WP NO. 10422 OF 2023

to the appointment of the Teacher. However, beyond raising oral

submission, nothing is placed before this Court for recording a conclusive

�nding that the approval order is issued by the Education Of�cer in

absence of any proposal. Even otherwise, it is dif�cult to believe that the

Education Of�cer would issue approval order in absence of approval by

the Management.

22) The approval order dated 21 February 2008 grants approval to

the appointment on 13 December 2007 with a remark ‘on vacant post’.

There is one more approval order dated 26 October 2007 in respect of the

other teachers and two staff members, which is also worded in similar

manner. Therefore, the approval order dated 21 February 2008 creates

some degree of presumption in favour of the Teacher that th e

appointment was regular in nature. It is a matter of fact that the

Management did not take any steps for revocation of approval order dated

21 February 2008 and continued the services of the Teacher till the year

2013. Thus, while the Teacher failed to prove existence of sanctioned

vacant post and conduct of selection process prior to appointment, the

situation is salvaged to some extent by production of approval order.

23) There is no dispute to the position that the post vacated by

the Teacher after his alleged termination on 29 December 2013 is �lled up

by appointment of Smt. Rinku Gavit, ST category candidate vide order

dated 31 December 2013. In the af�davit in reply �led before the School

Tribunal, the Management had raised the following defenses:

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Neeta Sawant WP NO. 10422 OF 2023

The appointment of the Appellant has been made on temporary basis and

the service of the Appellant has been used by these Respondents as an

additional teacher, especially when the other permanent employee used to

be on leave or absent etc. The service of the Appellant automatically

comes to an end on 12/12/2009 as per appointment order dated

12/12/2007. Thereafter, there was no appointment order given / issued to

the Appellant, as he was working purely on temporary basis as an

additional teacher. The Respondent No. 3 has also given direction to

appoint an employee of S.T. category, and these Respondents have

allowed the Appellant to work as an additional teacher as and when

required, till the appropriate candidate of S.T. category was available for

appointment. Thus, it does not mean that the Appellant was working on

clear, permanent and vacant post. In short, the service of the Appellant

comes to an end in the year 2009, and thereafter the re was no

appointment order issued to the Appellant, as he had never worked on

clear, permanent and vacant post. In fact, as stated above, the Appellant

has never been appointed on clear, permanent and vacant post, as there

was no such post available with these Respondents on 13/12/2007. 

24) Thus, it was the stand of the Management before the School

Tribunal that the Teacher was permitted to work till availability of ST

category candidate. It appears that the post vacated by the Teacher has

ultimately been �lled up by ST category candidate. The Management has

also produced copy of inspection report of the school dated 21 January

2014 indicating sanction of only four posts. The reservation chart

certi�ed by the Assistant Commissioner-Backward Desk is also produced

which shows that out of the said sanctioned 4 posts of Teacher, the two

posts were unreserved, 1 post was reserved for SC category and one post

was reserved for ST category. It is the case of the Management that one

post reserved for ST category is accordingly �lled up by appointment of

Smt. Rinku Gavit. The Teacher failed to implead Smt. Gavit as party

respondent to the appeal despite knowing that an order of reinstatement

would clearly affect Smt. Gavit.

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Neeta Sawant WP NO. 10422 OF 2023

25) It is the position taken by the Management that no vacant

post is available in the school for accommodation of the Teacher. It is

pointed out the school has now received 60% grant and cannot employ

any teacher in excess of sanctioned strength.

26) It appears that the Teacher was reinstated in service after

this Court refused to grant interim stay to the School Tribunals order. The

Management has claimed that the Teacher was reinstated in service on 16

March 2015. Though this position is sought to be disputed by Mr.

Lengare, it appears that the Teacher admitted his reinstatement before

the Education Of�cer when he decided the issue of computation of

backwages. This is clear from the following observations recorded by the

Education Of�cer in the order dated 20 June 2022 :-

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27) Thus, the Teacher admitted his reinstatement from 16 March

2015. It is the case of the Management that the Teacher remained

unauthorizedly absent and accordingly was required to be terminated on

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PAGE NO. 17 OF 23

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Neeta Sawant WP NO. 10422 OF 2023

15 June 2016. It is not necessary to go into the aspect of alleged

termination effected in the year 2016.

28) The issue for consideration is whether the order passed by

the School Tribunal directing reinstatement with full backwages can be

sustained in the facts and circumstances of the present case where there

is no post available with the Management for accommodation of the

Teacher. As discussed above, the manner in which appointment of the

Teacher is made is not very convincing. He continued in services for

about 6 years and his services were discontinued on 29 December 2013. If

there was no approval order dated 21 February 2008, this Court would

have in fact proceeded to set aside the order passed by the School

Tribunal on the basis of perverse �ndings recorded by the Tribunal on the

aspects of availability of vacant post and following of process of selection

prior to the appointment. However, reliance by the teacher on approval

order dated 21 February 2008 prevents the Court from setting aside the

order of the School Tribunal in entirety. At the same time, there is no

material on record to reach a conclusive �nding that the appointment of

the Teacher was regular and after following due process of selection.

Therefore, it cannot be that production of approval order would absolve

the Teacher of responsibility of proving that the appointment was regular

and after following due process of selection. Considering the above

position, in my view, though termination is found to be wrongful, grant of

relief of reinstatement with full backwages would not be warranted

considering the peculiar facts and circumstances of the present case.

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Neeta Sawant WP NO. 10422 OF 2023

29) This Court also notices the developments that have occurred

after passing of the order of the School Tribunal on 30 October 2014. It

appears that the Management has deposited total amount of

Rs.5,42,321/- which has been withdrawn by the Teacher. The amount of

Rs.4,13,000/- was deposited in pursuance of order passed by the Division

Bench in Writ Petition No.9219 of 2022. After the Executing Court passed

the order, the remaining amount of Rs.1,38,972/- is deposited in the

Executing Court by Demand Draft dated 27 April 2023. This is how total

amount of Rs.5,42,321/- is deposited which is already withdrawn by the

Teacher. Upon a query put by the Court, Mr. Deshmukh fairly admits that

Management was unable to pay full salary to the Teach er after

reinstatement on 16 March 2015. Mr. Deshmukh has shown willingness

to pay further amount of Rs.5,00,000/- towards difference of unpaid salary

during 16 March 2015 till April 2016. Alternatively, a proposal is given by

the Management to reinstate the Teacher in service and show him as

surplus for the purpose of being absorbed by the State Government in

some other school. In my view, however the course of action of treating

the Teacher as surplus would put �nancial burden on the State

Government, who will have to pay salary and allowances to the Teacher

though the dispute is purely between the Management and the Teacher.

In my view, therefore award of lumpsum compensation to the Teacher

would meet the ends of justice by modifying School Tribunal's order dated

30 October 2014.

30) There is yet another reason why this Court is justi�ed in

awarding lumpsum compensation to the Teacher. Pursuant to School

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Neeta Sawant WP NO. 10422 OF 2023

Tribunal's order dated 30 October 2014, the Management reinstated the

Teacher in services, which is apparent from admission made by him

before the Education Of�cer during the course of meeting held on 7 June

2022. Thus, School Tribunal's order was implemented by reinstatement

effected on 16 March 2015. Whether the Teacher was paid due salary and

allowances after reinstatement on 16 March 2015 cannot be a subject

matter of execution of Tribunal’s order dated 30 October 2014. If the

Teacher was not paid full salary and allowances and was wrongfully

terminated, the same would form a separate cause of action. The

Executing Court has conducted an inquiry and found that the backwages

from the date of termination upto the date of reinstatement (29

December 2013 to 15 March 2015) as only Rs.5,42,321/-. Therefore, even

if the order of the School Tribunal is sustained and executed, all that the

teacher would receive is backwages of Rs.5,42,321/-. The management has

treated him as having been reinstated and terminated again. His spell of

service from 16 March 2015 to 15 June 2016 is not the subject matter of

present litigation. Therefore, he will have to initiate another round of

litigation for claiming salary for the period 16 March 2015 to 15 June

2016. He will have to also �le litigation challenging his discontinuation in

June 2016. Thus, the Teacher would remain in continuous state of

litigation when he has already spent 12 long years in litigating in relation

to his earlier order of termination. The School Management does not have

a vacancy for accommodation of the Teacher. This Court is testing the

correctness of Tribunal’s order and even if the same is upheld, the

Management is treating the Teacher as having been reinstated and

terminated again. Therefore, this Court cannot, in the present

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Neeta Sawant WP NO. 10422 OF 2023

proceedings, direct his reinstatement in absence of challenge to the

second order of reinstatement. Also, reinstating him only for the purpose

of being declared as surplus would put �nancial burden on the public

exchequer as State Government will have to bear salary burden from the

date of declaration as surplus. It is also not known as to when the Teacher

will get accommodated in some other school and the place at which his

absorption would be. Over the period of time, the Teacher has also grown

in terms of age. His age in the year 2023 was 42 yrs while �ling Writ

Petition No.10422 of 2023. This means that the Teacher has now crossed

the age of 45 years. Sending him to some unknown school at this point of

time is otherwise not in his interest. Therefore, the convenient option of

reinstatement only for the purpose of being declared surplus, suffused by

the Management which suggestion is aimed at not paying anything to

him, cannot be accepted. Instead the Management is required to be

saddled with the liability to pay for compensation for wrongful

termination.

31)Considering the totality of circumstances, in my view, award of

lumpsum compensation of Rs.15 lakhs to the Teacher would meet the

ends of justice. Out of the said amount of Rs.15,00,000/-, the amount of

Rs.5,42,321/- has already been deposited and is apparently withdrawn by

the Teacher. The balance amount of Rs.9,57,679/- shall be paid by the

Management to the Teacher so as to ensure that the total compensation

payable to the Teacher is Rs.15,00,000/-.

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Neeta Sawant WP NO. 10422 OF 2023

32)Since the main order of the Tribunal dated 30 October 2014 is being

modi�ed, the direction for reinstatement, backwages and continuity in

service would get substituted by direction for payment of lump-sum

compensation of Rs.15 lakhs. Therefore, nothing would survive in Writ

Petition No. 10422 of 2023, which is rendered infructuous.

33) I accordingly proceed to pass the following order :

(i) Judgment and order dated 30 October 2014 passed by the School

Tribunal in Appeal No.5 of 2014 is modi�ed by directing that the

Teacher is entitled to receive lumpsum compensation of Rs.15

lakhs from the management in lieu reinstatement and

backwages.

(ii) The Management shall pay to the Teacher balance amount of

compensation of Rs.9,57,679/- within a period of 6 weeks. If the

Teacher does not cooperate in accepting the amount of

compensation, the same shall be deposited by the Management

in the Executing Court with liberty to the Teacher to withdraw

the same.

(iii) Since the order of the School Tribunal is modi�ed, nothing

remains to be adjudicated in the execution proceedings and

accordingly the order dated 21 April 2023 passed by the

Executing Court shall stand substituted by the directions issued

in the present Petitions.

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PAGE NO. 22 OF 23

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Neeta Sawant WP NO. 10422 OF 2023

(iv) Nothing survives to be determined in Writ Petition No.10422 of

2023 which is disposed of as infructuous.

34) With the above directions, both the Petitions are disposed of.

There shall be no order as to costs.

[SANDEEP V. MARNE, J.]

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PAGE NO. 23 OF 23

18 MARCH 2026